Bankruptcy Law

Without harm to the application of I and II of Article L. 622-13, termination of the lease for buildings used for the debtor's business takes place in the event of a decision by the receiver not to continue the contract, or a request for termination or a statement by the lessor, in accordance with Article L. 622-14 of the Commercial Code, applicable to the receivership procedure by reference to Ar …

Termination assumptions

Without harm to the application of I and II of Article L. 622-13, termination of the lease for buildings used for the debtor's business takes place in the event of a decision by the receiver not to continue the contract, or a request for termination or a statement by the lessor, in accordance with Article L. 622-14 of the Commercial Code, applicable to the receivership procedure by reference to Article L. 631-14. The provisions applicable to the current lease contract are combined with the texts of the Commercial Code relating to commercial leases. In fact, the lease may also be terminated by the application of a resolutory clause.

Under Article L. 622-14, 1°, the commercial lease contract is terminated “[a]t the time when the lessor is informed of the receiver's decision not to continue the lease”. This decision falls within the exclusive jurisdiction of the receiver, regardless of the scope of the mission entrusted to him . Non-continuation may be notified to the lessor even if the receiver has the necessary funds to pay the rent. The effective date of termination is that stipulated in the text, even if the receiver has indicated a later termination date . In the absence of any dispute as to the receipt and scope of the receiver's letter terminating the lease, the interim judge, seized after the close of the insolvency procedure, has jurisdiction to declare the termination on the date of its receipt by the lessor, even if the bankruptcy judge, whose mission ended with the procedure, has not previously been seized for the same purpose .

In accordance with Article L. 145-41 of the Commercial Code, any clause in the lease providing for termination ipso jure only takes effect one month after an unsuccessful notice to quit. The summons must mention this time-limit, failing which it will be null and void. A lease contract is terminated ipso jure if the rent paid after the opening of the debtor's insolvency procedure has not been paid within one month of the summons to pay sent to the legal representative . The Court of Cassation ruled that the termination request was inadmissible in the absence of a summons to pay containing the resolutory clause . In addition, the legal representative may apply for payment extensions and suspension of the effects of the resolutory clause, as long as the lease has not been terminated by a final decision . On the other hand, the lessor is not entitled to request the termination of a commercial lease contract by virtue of a resolutory clause, after the opening of the insolvency procedure against the lessee, for non-payment of previous rents, even if he has issued a summons to pay prior to this date .

3) Request for termination or declaration by the lessor

Article L. 622-14, 2° provides that the commercial lease may also be terminated upon application by the lessor based on the lessee's failure to pay rent and charges relating to an occupation subsequent to the opening judgment. In the absence of a resolutory clause, the lessor of the premises used by the debtor company is not obliged to issue a summons to pay . Furthermore, if the lessor pursues the termination of the lease after the legal representative has waived the right to continue the lease, he must notify the previously registered creditors of his request to enable them to assert their rights .

The lessor may also apply for a declaration of termination for the same reasons. If his request is not based on a resolutory clause, he is not obliged to deliver a summons to pay to the legal representative , nor to notify him of his request if he has served it on the manager of the debtor company . At the request of any interested party, the bankruptcy judge determines the termination of the contracts ipso jure, as well as the date of such termination . The jurisdiction conferred on the bankruptcy judge does not exclude that of the interim judge, called upon to rule in application of the resolutory clause inserted in a lease, independently of the progress of the insolvency procedure .

Article L. 622-14, 2° adds that the lessor may only take action to terminate the lease, or to establish that it has been terminated, after a period of three months from the opening judgment . If the insolvency procedure is subsequently converted, the action period runs from the date of the judgment opening the first proceedings procedure . He may obtain termination of the lease if his request, presented after the decision ordering the transfer of the business, predates the auction sale of the business . This period is not a limitation period, but rather the starting point for his action for termination: the action must be brought after the three-month period, and not within it . The text specifies that if the sums due are paid before the expiry of this period, there is no reason to terminate the contract.

Lastly, the receiver's failure to respond to a formal notice to take a decision on the continuation of the lease, sent by the lessor of a building used for the company's business, does not result in the automatic termination of the lease , since the provisions of Article L. 622-13 do not apply to commercial leases.

Cass. com., 20 September 2017, LawLex202100003324JBJ (LJ).

Cass. com., 24 January 2018, LawLex202100002327JBJ (S).

Cass. com., 15 November 2017, LawLex202100003352JBJ (LJ).

Cass. com., 17 October 1989, LawLex202100001115JBJ (LJ).

See by analogy Cass. com., 19 février 2013, LawLex202100003351JBJ (LJ).

Cass. com., 21 February 2012, LawLex202100003353JBJ (LJ).

Cass. com., 15 November 2017, cited above.

Cass. com., 2 March 2010, LawLex202100002326JBJ (RJ).

Cass. com., 10 July 2001, LawLex202100003323JBJ (LJ).

Cass. com., 28 June 2011, LawLex202100003347JBJ (RJ).

Cass. com., 6 December 2011, LawLex202100003348JBJ (LJ).

Cass. 3e civ., 13 April 2022, LawLex202200002466JBJ (S).

Cass. com., 9 October 2019, LawLex202100003349JBJ (LJ).

Cass. com., 1 October 2002, LawLex202100002330JBJ (LJ).

Cass. com., 15 January 2020, LawLex202200000401JBJ (LJ) ; Cass. 3e civ., 24 November 2021, LawLex202200000400JBJ (LJ).

Bankruptcy Law

381. Termination assumptions

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Les notions juridiques connexes

381. Termination assumptions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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